PCLOB Releases Update on Government's Implementation of the PCLOB Recommendations on Section 215 and Section 702

The bipartisan Privacy and Civil Liberties Oversight Board (PCLOB) has released a report that provides an update on the progress the government has made toward implementing agency recommendations. The "Recommendations Assessment Report" outlines the status of 22 recommendations PCLOB made as part of two separate reports.

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Introduction

In 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) issued reports on
the government’s Section 215 and Section 702 surveillance programs. Combined, these
two reports made 22 recommendations to ensure that these programs appropriately
balance national security with privacy and civil liberties.

In January 2015, the PCLOB released an assessment of the status of these
recommendations, which included descriptions of efforts that were being made by the
government to implement them. This document is an update on the status of these PCLOB
recommendations.

All of the PCLOB’s 22 recommendations have been implemented in full or in
part, or the relevant government agency has taken significant steps toward adoption
and implementation.

As a result, since the release of these two reports, important measures have been
taken to enhance the protection of Americans’ privacy and civil liberties and to strengthen
the transparency of the government’s surveillance efforts, without jeopardizing our
counterterrorism efforts.

Implementation of these recommendations is the result of both action on the part of
relevant government agencies and passage of the USA FREEDOM Act, which was enacted in
June, 2015. The USA FREEDOM Act addressed most of the recommendations in PCLOB’s
Section 215 report. In addition, the Administration has been working to implement all of
the recommendations in the Board’s Section 702 report.

The PCLOB is an independent, bipartisan agency within the executive branch,
charged with ensuring that the federal government’s efforts to prevent terrorism are
balanced with the need to protect privacy and civil liberties. The Board’s analyses of the
Section 215 and 702 programs from a legal and policy perspective informed the Board’s
recommendations. While most of the recommendations were directed at the executive
branch, and in particular, elements of the Intelligence Community, some recommendations
were directed at Congress or the Foreign Intelligence Surveillance Court (“FISC” or “FISA
court”). For each of the Board’s 22 recommendations, this document explains the
recommendation; describes the steps taken to implement it; and offers the Board’s
assessment of how fully it has been adopted.

Overall, the Board continues to find the Administration and the Intelligence
Community responsive to its recommendations.

While nine of the 22 recommendations are still in the process of being implemented
or have been only partially implemented, the Board looks forward to continued
consultation with the Administration and the Intelligence Community regarding their
efforts.

Highlights of implementation of PCLOB’s Section 215 recommendations:

Consistent with PCLOB’s recommendation, the USA FREEDOM Act ended the NSA’s
bulk telephone records program conducted under Section 215. Enactment of this
legislation also addressed recommendations to enable the FISA court to hear
independent views on novel and significant matters and to expand opportunities for
appellate review of FISA court decisions.

As recommended by PCLOB, the USA FREEDOM Act also includes additional
requirements for public reporting to promote transparency. The public reporting
will include information regarding the appointment of individuals to provide
independent views before the FISA court as well as statistical information about
government surveillance. In addition, the Act permits further statistical reporting by
private companies regarding the frequency with which they receive government
demands for their data.

As recommended by PCLOB, the government has taken significant steps toward
developing principles and criteria for intelligence transparency for the Intelligence
Community.
Highlights of implementation of PCLOB’s Section 702 recommendations:

As part of the annual process of reauthorizing the Section 702 program, the
government submitted revised targeting and minimization procedures for approval
by the FISA court. These revised procedures, all of which were approved by the
court, include changes designed to address several recommendations in the Board’s
report.

In seeking annual recertification of the Section 702 program, the government
submitted all the supplemental materials recommended by the PCLOB in
Recommendations 4 and 5, thereby facilitating the FISA court’s assessment of the
Section 702 program.

Section 215 Report Recommendations

Recommendation 1: End the NSA’s Bulk Telephone Records Program

Status:
Implemented (USA FREEDOM Act)

Text of the Board’s Recommendation:

The government should end its Section 215 bulk telephone records program. (1)

Explanation for the Recommendation:
The Board concluded that the Section 215 bulk telephone records program lacks a viable
legal foundation under Section 215, implicates constitutional concerns under the First and
Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter,
and has shown only limited value. As a result, the Board recommended that the
government end the program. Without the current Section 215 program, the government
would still be able to seek telephone calling records directly from communications
providers through other existing legal authorities.

Discussion of Status:
The USA FREEDOM Act, enacted on June 2, 2015, ended the bulk telephone records
program, along the lines of the Board’s recommendation. The Act established a new system
under Section 215 for government access to call detail records in terrorism investigations.
To obtain call detail records under the new system, the government must identify a
“specific selection term” that is reasonably suspected of being associated with terrorism,
and it can obtain only records of calls up to two “hops” from that number, with FISC
approval. The NSA began operation of the new system on November 30, 2015.

(1) Board Members Rachel Brand and Elisebeth Collins did not join this recommendation.

Text of the Board’s Recommendation:
The government should immediately implement additional privacy safeguards in operating
the Section 215 bulk collection program.

Explanation for the Recommendation:
The Board recommended that the government immediately implement several additional
privacy safeguards to mitigate the privacy impact of the present Section 215 program. The
Board noted that the recommended changes can be implemented without any need for
congressional or FISC authorization.

Discussion of Status:
The Board proposed that four new safeguards be implemented if the bulk telephone
records program were to continue for any period of time. In the Recommendations
Assessments Report released by the Board in January 2015, the Board described how the
Administration had partially implemented the recommendation. Now that
Recommendation 1 has been fully implemented through enactment of the USA FREEDOM
Act, Recommendation 2 has been superseded. There is no longer a Section 215 bulk
telephone records program to which additional privacy safeguards could be applied.

Text of the Board’s Recommendation:
Congress should enact legislation enabling the FISC to hear independent views, in addition
to the government’s views, on novel and significant applications and in other matters in
which a FISC judge determines that consideration of the issues would merit such additional
views.

Explanation for the Recommendation:
Although the FISC continues to review applications for individualized FISA warrants, in the
past decade it has also been called upon to evaluate requests for broader collection
programs, such as the Section 215 telephone records program, and to review extensive
compliance reports regarding the implementation of the surveillance authorized under
Section 702. This expansion of the FISC’s jurisdiction has presented it with complex and
novel issues of law and technology. Currently, these issues are adjudicated by the court
based only on filings by the government, supplemented by the research and analysis of the
judges and their experienced legal staff.

The Board believes that, when FISC judges are considering requests for programmatic
surveillance affecting numerous individuals or applications presenting novel issues, they
should have the opportunity to call for third-party briefing on the legal issues involved. In
addition to assisting the court, a mechanism allowing FISC judges to call upon independent
expert advocates for a broader range of legal views could bolster the public’s trust in its
operations and in the integrity of the FISA system overall.

Discussion of Status:
Section 401 of the USA FREEDOM Act established a process for hearing independent views
that is largely consistent with the Board’s recommendation. This provision closely mirrors
the Board’s proposal regarding “the establishment of a panel of outside lawyers to serve as
Special Advocates before the FISC in appropriate cases.” Like the Board’s proposal, the USA
FREEDOM Act authorizes the presiding judge of the FISC to appoint a panel of at least five
private sector attorneys, eligible for security clearances and with relevant professional
experience, to participate in matters that a FISC judge determines involve a novel or
significant interpretation of the law, including the application of law to new technologies.
(Alternatively, a FISC judge may issue a written finding that such appointment is not
appropriate in a given case.) Under the USA FREEDOM Act, these individuals are
designated to serve “as amicus curiae” rather than as “Special Advocates” as in the Board’s
proposal, but the legislation does provide that the amici will be tasked with making
arguments addressing privacy and civil liberties, and will have access to relevant materials,
including government applications, petitions, and motions. Unlike the Board’s proposal, the
Act does not mandate that the amici be “permitted to participate in all proceedings related
to that application or matter” or “have access to all government filings” (emphasis added).
Our report notes, however, that the FISC has the power to establish specific rules regarding
the Special Advocate’s or amici’s participation through its internal Rules of Procedure.
The FISC has begun appointing individuals to serve as amici in particular matters, and in
November 2015, the FISC designated a standing panel of five individuals to serve as amicus
curiae as required under the Act.

Text of the Board’s Recommendation:
Congress should enact legislation to expand the opportunities for appellate review of FISC
decisions by the FISCR and for review of FISCR decisions by the Supreme Court of the
United States.

Explanation for the Recommendation:
Over the past decade, the FISC has generated a significant body of law interpreting FISA
authorities and other potentially applicable statutes, and analyzing related constitutional
questions. However, FISC opinions have been much less likely to be subject to appellate
review than the opinions of ordinary federal courts; to date, only two cases have been
decided by the Foreign Intelligence Surveillance Court of Review (“FISCR”). There should
be a greater opportunity for appellate review of FISC decisions by the FISCR and for review
of the FISCR’s decisions by the Supreme Court of the United States. Providing for greater
appellate review of FISC and FISCR rulings will strengthen the integrity of judicial review
under FISA. Providing a role for the Special Advocate in seeking that appellate review will
further increase public confidence in the integrity of the process.

Discussion of Status:
Section 401 of the USA FREEDOM Act expands the opportunities for appellate review of
FISC decisions by the FISCR and for review of FISCR decisions by the Supreme Court of the
United States.
Like the Board’s proposal, the Act authorizes the FISC, after issuing an order, to certify a
question of law to be reviewed by the FISCR. Similarly, the Act authorizes the FISCR to
certify a question of law to be reviewed by the U.S. Supreme Court. In each circumstance,
the higher court would decide whether to review the question certified by the lower court.
The USA FREEDOM Act provides fewer guarantees than the Board’s proposal that any
participating amicus curiae will be allowed to participate in the appellate review process —
both in the decision about whether to certify a question of law for review, and in the
proceedings that take place once a question has been certified. Unlike the Board’s proposal,
the Act provides no mechanism for an amicus curiae to request certification of a FISC or
FISCR decision, and it provides no mechanism by which an amicus curiae can challenge the
FISC’s decision not to certify a legal question for appellate review. The Board notes that
FISC and FISCR rules of procedure could be revised to provide such mechanisms. In
addition, under the Board’s proposal, when a legal question is accepted for review by the
FISCR, the Special Advocate would be permitted to participate in the matter, just as in the
FISC. By contrast, under the USA FREEDOM Act, such participation is permitted only when
the FISCR also determines that the matter presents a novel or significant interpretation of
the law. The Act also provides that upon certification of a matter to the U.S. Supreme Court,
the Court “may appoint an amicus curiae” designated under the provisions of the Act.

Recommendation 5: Take Full Advantage of Existing Opportunities for Outside Legal and Technical Input in FISC Matters

Status:
Implemented

Text of the Board’s Recommendation:
The FISC should take full advantage of existing authorities to obtain technical assistance
and expand opportunities for legal input from outside parties.
Explanation for the Recommendation:
FISC judges should take advantage of their ability to appoint Special Masters or other
technical experts to assist them in reviewing voluminous or technical materials, either in
connection with initial applications or in compliance reviews. In addition, the FISC and the
FISCR should develop procedures to facilitate amicus participation by third parties in cases
involving questions that are of broad public interest, where it is feasible to do so consistent
with national security.

Discussion of Status:
As described in connection with Recommendation 3 above, the FISC has obtained legal
input from outside experts pursuant to the USA FREEDOM Act. Further, based on
conversations with FISA court personnel, the Board understands that efforts are underway
for the court to designate one or more individuals to serve as amici who have technical
expertise, in addition to the already appointed panel of individuals with legal expertise.

Text of the Board’s Recommendation:
To the maximum extent consistent with national security, the government should create
and release with minimal redactions declassified versions of new decisions, orders and
opinions by the FISC and FISCR in cases involving novel interpretations of FISA or other
significant questions of law, technology or compliance.
Explanation for the Recommendation:
FISC judges should continue their recent practice of drafting opinions in cases involving
novel issues and other significant decisions in the expectation that declassified versions
will be released to the public. This practice has facilitated declassification review. The
government should promptly create and release declassified versions of these FISC
opinions.

Discussion of Status:
The government has continued to declassify and release additional opinions over the past
year. In addition, the USA FREEDOM Act now requires that the government will conduct a
declassification review of each new decision of the FISC and FISCR “that includes a
significant construction or interpretation of any provision of law,” including decisions
interpreting the term “specific selection term” under the new system for accessing call
detail records, and that the government will make declassified versions of these opinions
publicly available to the greatest extent practicable. The Board also notes that the FISA
court maintains its own website where, at least since April 2014, it has been posting public
filings including briefs and declassified opinions and orders.

Text of the Board’s Recommendation:
Regarding previously written opinions, the government should perform a declassification
review of decisions, orders and opinions by the FISC and FISCR that have not yet been
released to the public and that involve novel interpretations of FISA or other significant
questions of law, technology or compliance.

Explanation for the Recommendation:
The government should create and release declassified versions of older opinions in novel
or significant cases to the greatest extent possible consistent with protection of national
security. This should cover programs that have been discontinued, where the legal
interpretations justifying such programs have ongoing relevance.
Although it may be more difficult to declassify older FISC opinions drafted without
expectation of public release, the release of such older opinions is still important to
facilitate public understanding of the development of the law under FISA. The Board
acknowledges the cumulative burden of these transparency recommendations, especially
as the burden of review for declassification may fall on the same individuals who are
responsible for preparing new FISA applications, overseeing compliance with existing
orders, and carrying out other duties. The Board urges the government to develop and
announce some prioritization plan or approach. We recommend beginning with opinions
describing the legal theories relied upon for widespread collection of metadata from
Americans not suspected of terrorist affiliations, to be followed by opinions involving
serious compliance issues.

Discussion of Status:
The Intelligence Community has continued to declassify and release previously issued FISC
decisions and related materials over the past year. These have been posted both on the
FISA court’s website and on the Intelligence Community’s website, IC on the Record.
The Intelligence Community has advised us that it remains committed to implementing this
recommendation, and that it will continue to conduct declassification reviews of both older
and more recent opinions.

Recommendation 8: Publicly Report on the Operation of the FISC Special Advocate Program

Status:
Implemented (USA FREEDOM Act)

Text of the Board’s Recommendation:
The Attorney General should regularly and publicly report information regarding the
operation of the Special Advocate program recommended by the Board. This should
include statistics on the frequency and nature of Special Advocate participation in FISC and
FISCR proceedings.

Explanation for the Recommendation:
Should the government adopt our recommendation for a Special Advocate in the FISC, the
nature of that advocate’s role must be transparent to be effective. The FISC should publicly
disclose any rules the court adopts governing the advocate’s participation in proceedings.
In addition, the Attorney General should regularly and publicly report statistics on the
frequency of Special Advocate participation, including the number of times Special
Advocates have sought review of FISC decisions in the FISCR and the U.S. Supreme Court.

Discussion of Status:
Section 603 of the USA FREEDOM Act requires the Administrative Office of the United
States Courts annually to report to the intelligence and judiciary committees of Congress on
the number of times that an amicus curiae is appointed, the identity of the appointee, the
number of times that a FISC judge determines that participation of an amicus curiae is not
appropriate, and the text of the written findings supporting such determinations. The Act
also requires that this information be reported publicly — except for any written findings
supporting any decision not to appoint an amicus curiae.

Recommendation 9: Permit Companies to Disclose Information about Their Receipt of FISA Production Orders, and Disclose More Detailed Statistics on Surveillance

Status:
Implemented (USA FREEDOM Act)

Text of the Board’s Recommendation:
The government should work with Internet service providers and other companies that
regularly receive FISA production orders to develop rules permitting the companies to
voluntarily disclose certain statistical information. In addition, the government should
publicly disclose more detailed statistics to provide a more complete picture of government
surveillance operations.

Explanation for the Recommendation:
One important way to understand and assess any government program is numerically — to
categorize its critical elements and count them. Periodic public reporting on surveillance
programs is a valuable tool promoting accountability and public understanding. We believe
that publication of additional numerical information on the frequency with which various
surveillance authorities are being used would be possible without allowing terrorists to
improve their tradecraft.
In recent years, U.S. companies have begun publishing reports showing, country by
country, how many government demands they receive for disclosure of user data. Because
we believe this kind of reporting can be useful in building and maintaining public trust, we
recommended that the government work with companies to permit disclosure of more
detailed information.
In addition, the Board recommended that the government report more detailed
information. To ensure that government reports are meaningful, the government would
have to distinguish between particularized programs and those involving bulk collection. In
the case of targeted programs, the government should disclose how many orders have been
issued and how many individuals have been targeted.

Discussion of Status:
Title VI of the USA FREEDOM Act both requires further public reporting by the government
and permits further transparency reporting by private companies, and thus covers both
parts of the Board’s recommendation.

Text of the Board’s Recommendation:
The Attorney General should fully inform the PCLOB of the government’s activities under
FISA and provide the PCLOB with copies of the detailed reports submitted under FISA to
the specified committees of Congress. This should include providing the PCLOB with copies
of the FISC decisions required to be produced under Section 601(a)(5) [of FISA].

Explanation for the Recommendation:
Beyond public reporting, FISA requires the Attorney General to “fully inform” the Senate
and House intelligence and judiciary committees regarding the government’s activities
under certain sections of FISA, including Section 215. FISA also requires the government to
provide the congressional committees with copies of “all decisions, orders, or opinions” of
the FISC or FISCR that include “significant construction or interpretation” of the provisions
of FISA. These two reporting requirements facilitate congressional oversight. The Board
urges the government to extend this complete reporting to the PCLOB as well, to facilitate
the Board’s oversight role.

Discussion of Status:
The Intelligence Community and the Justice Department have provided the PCLOB with
many of the congressional reports and FISC decisions described above. Although not all
such documents have yet been provided, the Intelligence Community and the Justice
Department have also taken steps to implement a standing production system, under
which documents submitted to Congress will be routinely provided to PCLOB as well. The
Justice Department made the first production to PCLOB in what has been represented to be
a new standing production system in January 2016.

Recommendation 11: Begin to Develop Principles for Transparency

Status:
Implemented

Text of the Board’s Recommendation:
The Board urges the government to begin developing principles and criteria for
transparency.

Explanation for the Recommendation:
Transparency is one of the foundations of democratic governance. Our constitutional
system of government relies upon the participation of an informed electorate. This in turn
requires public access to information about the activities of the government. Transparency
supports accountability. It is especially important with regard to activities of the
government that affect the rights of individuals. In addition to the specific transparency
measures outlined in Recommendations 6 through 10, the Board urges the Administration
to commence the process of articulating principles and criteria for deciding what must be
kept secret and what can be released as to existing and future programs that affect the
American public.

Discussion of Status:
In February 2015, the Office of the Director of National Intelligence (“ODNI”) released
Principles of Intelligence Transparency for the Intelligence Community describing four
broad principles to guide the Intelligence Community’s work. On October 27, 2015, the
ODNI released an Implementation Plan for these principles, setting forth a series of
priorities and action items.

Text of the Board’s Recommendation:
The scope of surveillance authorities affecting Americans should be public. (2)

Explanation for the Recommendation:
The Administration should develop principles and criteria for the public articulation of the
legal authorities under which it conducts surveillance affecting Americans. If the text of the
statute itself is not sufficient to inform the public of the scope of asserted government
authority, then the key elements of the legal opinion or other document describing the
government’s legal analysis should be made public so there can be a free and open debate
regarding the law’s scope. This includes both original enactments such as Section 215’s
revisions and subsequent reauthorizations. The Board’s recommendation distinguishes
between “the purposes and framework” of surveillance authorities and factual information
specific to individual persons or operations. While sensitive operational details regarding
the conduct of government surveillance programs should remain classified, and while legal

interpretations of the application of a statute in a particular case may also be secret so long
as the use of that technique in a particular case is secret, the government’s interpretations
of statutes that provide the basis for ongoing surveillance programs affecting Americans
can and should be made public. This includes intended uses of broadly worded authorities
at the time of enactment as well as post-enactment novel interpretations of laws already on
the books.

Discussion of Status:
Intelligence Community representatives have continued to advise us that they are
committed to implementing this recommendation, as reflected in the transparency
principles described above. In our Recommendations Assessments Report last year, we
noted that in connection with the Board’s July 2014 report on the Section 702 surveillance
program, the Intelligence Community worked closely with the Board to declassify a great
deal of information about the scope and nature of that surveillance program. We also note
that the Intelligence Community has continued to publish information online at IC on the
Record, and the NSA has recently released a new Transparency Report outlining the
agency’s implementation of the USA FREEDOM Act.
While the broad nature of our recommendation makes it difficult for us to assess its
implementation, we believe that key leadership within the Intelligence Community is
committed to implementation.

(2) Board Members Rachel Brand and Elisebeth Collins did not join this recommendation.

Section 702 Report Recommendations

Text of the Board’s Recommendation:
The NSA’s targeting procedures should be revised to (a) specify criteria for determining the
expected foreign intelligence value of a particular target, and (b) require a written
explanation of the basis for that determination sufficient to demonstrate that the targeting
of each selector is likely to return foreign intelligence information relevant to the subject of
one of the certifications approved by the FISA court. The NSA should implement these
revised targeting procedures through revised guidance and training for analysts, specifying
the criteria for the foreign intelligence determination and the kind of written explanation
needed to support it. We expect that the FISA court’s review of these targeting procedures
in the course of the court’s periodic review of Section 702 certifications will include an
assessment of whether the revised procedures provide adequate guidance to ensure that
targeting decisions are reasonably designed to acquire foreign intelligence information
relevant to the subject of one of the certifications approved by the FISA court. Upon
revision of the NSA’s targeting procedures, internal agency reviews, as well as compliance
audits performed by the ODNI and DOJ, should include an assessment of compliance with
the foreign intelligence purpose requirement comparable to the review currently
conducted of compliance with the requirement that targets are reasonably believed to be
non-U.S. persons located outside the United States.

Explanation for the Recommendation:
This recommendation is designed to ensure that when the NSA selects a target for
surveillance under Section 702, a valid foreign intelligence purpose supports the targeting
decision.
The Board’s review of the Section 702 program showed that the procedures for
documenting targeting decisions within the NSA, and the procedures for reviewing those
decisions within the executive branch, focus primarily on establishing that a potential
target is a non-U.S. person reasonably believed to be located abroad. The process for
documenting and reviewing the foreign intelligence purpose of a targeting decision is not
as rigorous, and typically agency personnel indicate what category of foreign intelligence
information they expect to obtain from targeting a particular person in a single brief
sentence that contains only minimal information about why the analyst believes that
targeting this person will yield foreign intelligence information. However, the “foreign
intelligence purpose” determination is a critical part of the statutory framework under
Section 702. Changes to the targeting procedures that provide more guidance to analysts
and require more explanation regarding the foreign intelligence purpose of a targeting will
help analysts better articulate this element of their targeting decisions. When analysts
articulate at greater length the bases for their targeting decisions, the executive branch
oversight team that later reviews those decisions will be better equipped to meaningfully
review them.

Discussion of Status:
As part of the annual certification process for the Section 702 program, the government
submitted revised NSA targeting procedures for approval by the FISC. These revised
procedures included changes designed to address Recommendation 1 of the Board’s
Section 702 report. The Court approved these revised procedures as part of the annual
certification process.
The Board agrees that the revised procedures implement subpart (b) of this
recommendation, but find that subpart (a) is only partially implemented. The revised
targeting procedures specify in somewhat more detail the procedure, but do not add or
clarify substantive criteria, for determining the expected foreign intelligence value of a
particular target.
The NSA also has updated its internal guidance and training for analysts to implement the
revised procedures. This guidance included exemplars and the supporting rationale for an
improved description of the foreign intelligence that the analyst expects to receive by the
tasking. NSA has shared the updated TAR guidance with the FBI and CIA to ensure that they
provide NSA with the required documentation in support of their targeting nominations.
The Board has been advised that now that the NSA’s updated targeting procedures have
been approved, the compliance audits conducted by the DOJ/ODNI oversight teams include
review of the written explanations documenting the foreign intelligence purpose for
targeting determinations. This has facilitated the oversight team’s assessment of whether
the individual targeting decisions made by NSA analysts under Section 702 were justified
by a foreign intelligence purpose.

Recommendation 2: Update the FBI’s Minimization Procedures to Accurately Reflect the Bureau’s Querying of Section 702 Data for Non–Foreign Intelligence Matters, and Place Additional Limits on the FBI’s Use of Section 702 Data in Such Matters

Status:
Implemented

Text of the Board’s Recommendation:
The FBI’s minimization procedures should be updated to more clearly reflect the actual
practice for conducting U.S. person queries, including the frequency with which Section 702
data may be searched when making routine queries as part of FBI assessments and
investigations. Further, some additional limits should be placed on the FBI’s use and
dissemination of Section 702 data in connection with non–foreign intelligence criminal
matters. (3)

Explanation for the Recommendation:
Even though FBI analysts and agents who solely work on non–foreign intelligence crimes
are not required to conduct queries of databases containing Section 702 data, they are
permitted to conduct such queries and many do conduct such queries. This is not clearly
expressed in the FBI’s minimization procedures, and the minimization procedures should
be modified to better reflect this actual practice. The Board believes that it is important for
accountability and transparency that the minimization procedures provide a clear
representation of operational practices.
In addition, in light of the privacy and civil liberties implications of using Section 702
information, collected under lower thresholds and for a foreign intelligence purpose, in the
FBI’s pursuit of non–foreign intelligence crimes, the Board believes it is appropriate to
place some additional limits on what can be done with Section 702 information.
Discussion of Status:
As part of the annual certification process for the Section 702 program, the government
submitted revised FBI minimization procedures for approval by the FISC. These revised
procedures included changes designed to address Recommendation 2 of the Board’s
Section 702 report. The court approved these revised procedures as part of the annual
certification process.
The Board agrees that the changes implement the Board’s recommendation.

(3) Board Chairman David Medine and Board Member Patricia Wald joined this recommendation but in
a separate statement recommended requiring judicial approval for the FBI’s use of Section 702 data in non–
foreign intelligence matters. Board Members Rachel Brand and Elisebeth Collins would require an analyst
who has not had FISA training to seek supervisory approval before viewing responsive 702 information and
would require higher-level Justice Department approval before Section 702 information could be used in the
investigation or prosecution of a non–foreign intelligence crime.

Recommendation 3: Require NSA and CIA Personnel to Provide a Statement of Facts Explaining their Foreign Intelligence Purpose Before Querying Section 702 Data Using U.S. Person Identifiers, and Develop Written Guidance on Applying this Standard

Status:
Being implemented

Text of the Board’s Recommendation:
The NSA and CIA minimization procedures should permit the agencies to query collected
Section 702 data for foreign intelligence purposes using U.S. person identifiers only if the
query is based upon a statement of facts showing that it is reasonably likely to return
foreign intelligence information as defined in FISA. The NSA and CIA should develop
written guidance for agents and analysts as to what information and documentation is
needed to meet this standard, including specific examples.(4)

Explanation for the Recommendation:
Under the NSA and CIA minimization procedures for the Section 702 program, analysts are
permitted to perform queries of databases that hold communications acquired under
Section 702 using query terms that involve U.S. person identifiers. Such queries are
designed to identify communications in the database that involve or contain information
relating to a U.S. person. Although the Board recognizes that NSA and CIA queries are
subject to rigorous oversight by the DOJ’s National Security Division and the ODNI (with
the exception of metadata queries at the CIA, which are not reviewed by the oversight
team), we believe that NSA and CIA analysts, before conducting a query involving a U.S.
person identifier, should provide a statement of facts illustrating why they believe the
query is reasonably likely to return foreign intelligence information.
(5) Implementing these
measures will help to ensure that analysts at the NSA and CIA do not access or view
communications acquired under Section 702 that involve or concern U.S. persons when
there is no valid foreign intelligence reason to do so.

Discussion of Status:
As part of the annual certification process for the Section 702 program, the government
submitted revised NSA and CIA minimization procedures for approval by the FISC. These
revised procedures included changes designed to address Recommendation 3 of the
Board’s Section 702 report. The court approved these revised procedures as part of the
annual certification process.
The Board agrees that the changes in the minimization procedures implement the Board’s
recommendation.
The status of the CIA metadata queries remains the same as reported in the Board’s
Recommendations Assessment Report of January 2015, namely with respect to the CIA’s
metadata queries using U.S. person identifiers, the CIA accepted and plans to implement
this recommendation as it refines internal processes for data management. Thus, the CIA’s
new minimization procedures do not reflect changes to implement this recommendation
with regard to metadata queries.

(4) Board Chairman David Medine and Board Member Patricia Wald joined this recommendation but in
a separate statement recommended requiring judicial approval for the use of U.S. person queries of Section
702 data for foreign intelligence purposes.

(5) Board Member Elisebeth Collins would not extend a new requirement to this effect to metadata
queries.

Recommendation 4: Provide the FISC with Documentation of Section 702 Targeting Decisions and U.S. Person Queries

Status:
Substantially implemented

Text of the Board’s Recommendation:
To assist in the FISA court’s consideration of the government’s periodic Section 702
certification applications, the government should submit with those applications a random
sample of tasking sheets and a random sample of the NSA’s and CIA’s U.S. person query
terms, with supporting documentation. The sample size and methodology should be
approved by the FISA court.

Explanation for the Recommendation:
Providing a random sample of targeting decisions would allow the FISC to take a
retrospective look at the targets selected over the course of a recent period of time. The
data could help inform the FISA court’s review process by providing some insight into
whether the government is, in fact, satisfying the “foreignness” and “foreign intelligence
purpose” requirements, and it could signal to the court that changes to the targeting
procedures may be needed, or prompt inquiry into that question. The data could provide
verification that the government’s representations during the previous certification
approval were accurate, and it could supply the FISC with more information to use in
determining whether the government’s acquisitions comply with the statute and the
Fourth Amendment.
Similarly, a retrospective sample of U.S. person query terms and supporting documentation
will allow the FISC to conduct a fuller review of the government’s minimization procedures.
Such a sample could allow greater insight into the methods by which information gathered
under Section 702 is being utilized, and whether those methods are consistent with the
minimization procedures. While U.S. person queries by the NSA and CIA are already subject
to rigorous executive branch oversight (with the exception of metadata queries at the CIA),
supplying this additional information to the FISC could help guide the court by highlighting
whether the minimization procedures are being followed and whether changes to those
procedures are needed.

Discussion of Status:
The government proposed possible sampling methodologies to the FISC, and provided the
FISC’s legal staff as well as the court’s judges with a briefing during which they reviewed a
sample of tasking sheets and a sample of U.S. person queries. In its Memorandum Opinion
and Order reauthorizing the Section 702 program, the court referred to this
recommendation by the Board, and noted:
The government adopted this recommendation, and in January 2015 it provided the
Court’s legal staff with an extensive briefing on its oversight activities, as well as
sample tasking sheets and query terms. The government offered to make additional
tasking sheets and query terms available to the Court. At the Court’s request, the
government provided an overview of its Section 702 oversight efforts to all of the
Court’s judges in May 2015, which included a review of sample tasking sheets. These
briefings confirmed the Court’s earlier understanding that the government’s
oversight efforts with respect to Section 702 collection are robust.
In considering the recertification of the Section 702 program, the FISC did not make any
decision on a sampling methodology. To date the Court has not requested additional
tasking sheets or queries beyond what was provided in January and May 2015.

Recommendation 5: Create and Submit to the FISC a Single Consolidated Document Describing All Significant Rules Governing Operation of the Section 702 Program

Status:
Implemented by the executive branch

Text of the Board’s Recommendation:
As part of the periodic certification process, the government should incorporate into its
submission to the FISA court the rules for operation of the Section 702 program that have
not already been included in certification orders by the FISA court, and that at present are
contained in separate orders and opinions, affidavits, compliance and other letters, hearing
transcripts, and mandatory reports filed by the government. To the extent that the FISA
court agrees that these rules govern the operation of the Section 702 program, the FISA
court should expressly incorporate them into its order approving Section 702
certifications.
Explanation for the Recommendation:
The government’s operation of the Section 702 program must adhere to the targeting and
minimization procedures that are approved by the FISA court, as well as to the pertinent
Attorney General guidelines and the statute itself. The government also makes additional
representations to the FISA court through compliance notices and other filings, as well as
during hearings, that together create a series of more rigorous precedents and a common
understanding between the government and the court regarding the operation of the
program. Such rules have precedential value and create real consequences, as the
government considers itself bound to abide by the representations it makes to the FISA
court. To the extent that the rules which have emerged from these representations and this
interactive process govern the operation of the Section 702 program, they should be
memorialized in a single place and incorporated into the FISC’s certification review. This
consolidation of rules will also facilitate congressional oversight of the Section 702
program, and the Board views this recommendation as a measure to promote good
government.

Discussion of Status:
During the certification process, the government submitted a “Summary of Notable Section
702 Requirements” as part of its submission. The document includes references to hearing
transcripts, compliance letters and reports filed with the FISC, and other relevant
documents regarding the operation of the Section 702 program. As noted in the document’s
introduction, it “is not inclusive of all currently applicable rules and requirements for the
operation of the Section 702 program, but is intended as a reference guide to prominent
concepts governing the program.” The FISC noted in its Memorandum Opinion and Order
reauthorizing the Section 702 program that this document had been submitted, but the
Court did not incorporate the filing into its order or otherwise refer to the filing.

Text of the Board’s Recommendation:
To build on current efforts to filter upstream communications to avoid collection of purely
domestic communications, the NSA and DOJ, in consultation with affected
telecommunications service providers, and as appropriate, with independent experts,
should periodically assess whether filtering techniques applied in upstream collection
utilize the best technology consistent with program needs to ensure government
acquisition of only communications that are authorized for collection and prevent the
inadvertent collection of domestic communications.

Explanation for the Recommendation:
Upstream collection involves a greater risk that the government will acquire wholly
domestic communications, which it is not authorized to intentionally collect under Section 702. Ensuring that the upstream collection process comports with statutory limits and with
agency targeting procedures involves an important technical process of filtering out wholly
domestic communications. The government acknowledges, however, that the technical
methods used to prevent the acquisition of domestic communications do not completely
prevent them from being acquired. Even if domestic communications were to constitute a
very small percentage of upstream collection, this could still result in a large overall
number of purely domestic communications being collected. Mindful of these
considerations, the Board believes that there should be an ongoing dialogue, both within
the government and in cooperation with telecommunications providers or independent
experts, to ensure that the means being used to filter for domestic communications use the
best technology. We also believe that the determination about whether this is the case
should be continually revisited.

Discussion of Status:
The NSA conducted a review based upon the Board’s recommendation. The NSA completed
its review and determined that at this time the best technology is being used for filtering.
The NSA has advised the Board that it will periodically review whether the existing study
remains accurate. If technology has changed sufficiently to make the existing study no
longer accurate, the NSA will conduct a new study.

Text of the Board’s Recommendation:
The NSA periodically should review the types of communications acquired through “about”
collection under Section 702, and study the extent to which it would be technically feasible
to limit, as appropriate, the types of “about” collection.

Explanation for the Recommendation:
In the upstream collection process, the NSA acquires not only Internet communications
sent to and from the selector, such as an email address, used by a targeted person, but also
communications that simply contain reference to the selector, sometimes in the body of the
communication. These are termed “about” communications, because they are not to or
from, but rather “about” the communication selectors of targeted persons. In addition, for
technical reasons, “about” collection is needed even to acquire some communications that
actually are to or from a target. Other types of “about” collection can result in the
acquisition of communications between two non-targets, thereby implicating greater
privacy concerns. Moreover, the permissible scope of targeting in the Section 702 program
is broad enough that targets need not themselves be suspected terrorists or other bad
actors. Thus, if the email address of a target appears in the body of a communication
between two non-targets, it does not necessarily mean that either of the communicants is
in touch with a suspected terrorist.
While “about” collection is valued by the government for its unique intelligence benefits, it
is, to a large degree, an inevitable byproduct of the way the NSA conducts much of its
upstream collection. At least some forms of “about” collection present novel and difficult
issues regarding the balance between privacy and national security. But current
technological limits make any debate about the proper balance somewhat academic,
because it is largely unfeasible to limit “about” collection without also eliminating a
substantial portion of upstream’s “to/from” collection, which would more drastically
hinder the government’s counterterrorism efforts. We therefore recommend that the NSA
work to develop technology that would enable it to identify and distinguish among the
types of “about” collection at the acquisition stage, and then selectively limit or modify its
“about” collection, as may later be deemed appropriate.

Discussion of Status:
As with the previous recommendation, the NSA conducted a review based upon the Board’s
recommendation and concluded that no changes are practical at this time. The NSA has
advised the Board that it will periodically review whether the existing study remains
accurate. If technology has changed sufficiently to make the existing study no longer
accurate, the NSA will conduct a new study.

Recommendation 8: Publicly Release the Current Minimization Procedures for the CIA, FBI, and NSA

Status:
Implemented

Text of the Board’s Recommendation:
To the maximum extent consistent with national security, the government should create
and release, with minimal redactions, declassified versions of the FBI’s and CIA’s Section
702 minimization procedures, as well as the NSA’s current minimization procedures.

Explanation for the Recommendation:
The Board believes that the public would benefit from understanding the procedures that
govern the acquisition, use, retention, and dissemination of information collected under
Section 702. The Board respects the government’s need to protect its operational
methodologies and practices, but it also recognizes that transparency enables
accountability to the public that the government serves. Therefore, the Board urges the
government to engage in a declassification review and, to the greatest extent possible
without jeopardizing national security, release unredacted versions of the FBI, CIA, and
NSA minimization procedures.

Discussion of Status:
The Intelligence Community released declassified versions of all three agencies’ thencurrent
minimization procedures in February 2015.

Recommendation 9: Adopt Measures to Document and Publicly Release Information Showing How Frequently the NSA Acquires and Uses Communications of U.S. Persons and People Located in the United States

Status:
Being implemented

Text of the Board’s Recommendation:
The government should implement five measures to provide insight about the extent to
which the NSA acquires and utilizes the communications involving U.S. persons and people
located in the United States under the Section 702 program. Specifically, the NSA should
implement processes to annually count the following: (1) the number of telephone
communications acquired in which one caller is located in the United States; (2) the
number of Internet communications acquired through upstream collection that originate or
terminate in the United States; (3) the number of communications of or concerning U.S.
persons that the NSA positively identifies as such in the routine course of its work; (4) the
number of queries performed that employ U.S. person identifiers, specifically
distinguishing the number of such queries that include names, titles, or other identifiers
potentially associated with individuals; and (5) the number of instances in which the NSA
disseminates non-public information about U.S. persons, specifically distinguishing
disseminations that includes names, titles, or other identifiers potentially associated with
individuals. These figures should be reported to Congress in the NSA Director’s annual
report and should be released publicly to the extent consistent with national security.

Explanation for the Recommendation:
Since the enactment of the FISA Amendments Act in 2008, the extent to which the
government incidentally acquires the communications of U.S. persons under Section 702
has been one of the biggest open questions about the program, and a continuing source of
public concern. The executive branch has maintained that it cannot provide such a number
— because it is often difficult to determine from a communication the nationality of its
participants, and because the large volume of collection under Section 702 would make it
impossible to conduct such determinations for every communication that is acquired. The
executive branch also has pointed out that any attempt to document the nationality of
participants to communications acquired under Section 702 would actually be invasive of
privacy, because it would require government personnel to spend time scrutinizing the
contents of private messages that they otherwise might never access or closely review.
As a result of this impasse, lawmakers and the public do not have even a rough estimate of
how many communications of U.S. persons are acquired under Section 702. Based on
information provided by the NSA, the Board believes that certain measures can be adopted
that could provide insight into these questions without unduly burdening the NSA or
disrupting the work of its analysts, and without requiring the agency to further scrutinize
the contents of U.S. persons’ communications. We believe that the NSA could implement
five measures, listed above, that collectively would shed some light on the extent to which
communications involving U.S. persons or people located in the United States are being
acquired and utilized under Section 702.

Discussion of Status:
The NSA has advised the Board that for categories 9(4) and 9(5), as part of its reporting
under the USA FREEDOM Act, the NSA will report statistics that are substantially similar to
those requested by the Board. The NSA already reports similar statistics in classified
reports to Congress (which the Board reviewed during its Section 702 inquiry), and the
NSA has now agreed to make these numbers publicly available.
Specifically, for category 9(4), the Board had recommended that the NSA report “the
number of queries performed that employ U.S. person identifiers, specifically
distinguishing the number of such queries that include names, titles, or other identifiers
potentially associated with individuals.” The Justice Department already reports to
Congress, in a classified semiannual report required by FISA, the number of metadata
queries that use a U.S. person identifier, and also the number of U.S. person identifiers
approved for content queries. The NSA will report these numbers publicly as part of its USA
FREEDOM Act reporting, although it will not separately break out the number of such
queries that include names, titles, or other identifiers potentially associated with
individuals as described in subpart (4) of the Board’s recommendation.
For category 9(5), the Board had recommended that the NSA report “the number of
instances in which the NSA disseminates non-public information about U.S. persons,
specifically distinguishing disseminations that includes names, titles, or other identifiers
potentially associated with individuals.” As required by FISA, the NSA Director and NSA
Inspector General already report to Congress, in classified annual reports, the number of
disseminated NSA intelligence reports that refer to a U.S. person identity and the number of
U.S. person identities released by the NSA in response to requests for identities that were
not referred to by name or title in the original reporting. The NSA advises the Board that it
also plans to declassify and publicly report these numbers as part of its USA FREEDOM Act
reporting, although again, it will not separately break out the number of such queries that
include names, titles, or other identifiers potentially associated with individuals as
described in subpart (5) of the Board’s recommendation.
The Board had recommended in subparts (1), (2), and (3) that the NSA report “(1) the
number of telephone communications acquired in which one caller is located in the United
States; (2) the number of Internet communications acquired through upstream collection
that originate or terminate in the United States; (3) the number of communications of or
concerning U.S. persons that the NSA positively identifies as such in the routine course of
its work.” With regard to those subparts of the Board’s recommendation, the NSA has
informed the Board that it has considered various approaches and has confronted a variety
of challenges. However, the NSA has advised that it remains committed to developing and
implementing measures that will, in the language of the Board’s recommendation, “provide
insight about the extent to which the NSA acquires and utilizes” communications involving
26
U.S. persons and people located in the United States under the Section 702 program. The
NSA seeks to work with Board staff to develop such measures, either through further
refinement of the measures described in the Board’s recommendation or through
development of alternative approaches.

Recommendation 10: Develop a Methodology to Assess the Value of Counterterrorism Programs

Status:
Being implemented

Text of the Board’s Recommendation:
The government should develop a comprehensive methodology for assessing the efficacy
and relative value of counterterrorism programs.

Explanation for the Recommendation:
Determining the efficacy and value of particular counterterrorism programs is critical.
Without such determinations, policymakers and courts cannot effectively weigh the
interests of the government in conducting a program against the intrusions on privacy and
civil liberties that it may cause. Accordingly, the Board believes that the government should
develop a methodology to gauge and assign value to its counterterrorism programs, and
use that methodology to determine if particular programs are meeting their stated goals.
The Board is aware that the ODNI conducts studies to measure the relative efficacy of
different types of intelligence activities to assist in budgetary decisions. The Board believes
that this important work should be continued, as well as expanded so as to differentiate
more precisely among individual programs, in order to assist policymakers in making
informed, data-driven decisions about governmental activities that have the potential to
invade the privacy and civil liberties of the public.

Discussion of Status:
The ODNI has advised the Board that it has been working to develop a comprehensive
methodology for assessing efficacy, including a range of quantitative and qualitative
metrics. The ODNI also advises that it will soon provide the Board with a report outlining
this methodology. The Board looks forward to reviewing the report and working with the
ODNI on this critical initiative.